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In the past several years I have seen an increasing number of DUI cases proceed to jury trial, even on a first offense. Prosecuting attorneys across the state are becoming more stringent with negotiating DUI cases, even more so than serious felony offenses such as rape, assault, sex crimes, etc. Essentially the government has taken the position that DUI defendants in Washington are nearly equivalent to defendants having been charged with a serious sex crime! Does that seem like an exaggeration, well it isn't. For example, the King County District Courts in Seattle are so backed up with DUI cases that have not been resolved, that the judges are implementing a little know provision under the speedy trial rule that other judges in the state have never even heard of, it is called the cure period. The time for trial is regulated by CrRLJ 3.3 and the very first provision of that rule states:

(a) General Provisions. (1) Responsibility of Court. It shall be the responsibility of the court to ensure a trial in accordance with this rule to each person charged with a crime.

CrRLJ 3.3 (a)(1).

When a defendant cannot be brought to trial under the normal provisions of 3.3 then the court may, notice I did not say shall, but may, in its discretion add up to an extra 28 days of time.

Here is what the time for trial cure period provision says:

(g) Cure Period. The court may continue the case beyond the limits specified in section (b) on motion of the court or a party made within five days after the time for trial has expired. Such a continuance may be granted only once in the case upon a finding on the record or in writing that the defendant will not be substantially prejudiced in the presentation of his or her defense. The period of delay shall be for no more than 14 days for a defendant detained in jail, or 28 days for a defendant not detained in jail, from the date that the continuance is granted. The court may direct the parties to remain in attendance or be on- call for trial assignment during the cure period.

CrRLJ 3.3 (g).

Now does the court adding time a defendant's time for trial happen often, the answer is a resounding yes! It happens every single day in King County District Court Seattle. This addition of time is now the norm, it is not really even utilized as a discretionary ruling at this point it is being utilized by the court to accommodate the fact the King County Prosecuting Attorney's Office has purposefully backlogged their caseload to the point of overwhelming congestion. Defendants and their attorneys on a DUI will normally appear about a dozen times even if they are simply trying to get out to trial. The court is implementing this portion of the time for trial rule in an abuse of discretion in my opinion. CrRLJ 3.3 (g) clearly states that the court “may” continue the case beyond the time periods for up to 28 days. The rule states further that the continuance shall not be for more than 28 days (for those out of custody).

The court in Seattle is now imposing an automatic 28 day period, it is not implementing the rule correctly, that is, to place a case on standby and see if a courtroom opens up. The reason the rule is being implemented is due to the backlog of cases, directly related to the prosecuting attorney's office's policy of now not negotiating even the most minimal of DUI cases. For example a person charged with a DUI and with a BAC of below .08 is now being forced to jury trial in an effort to resolve their case. There are no more first bites of the apple for a DUI defendant.

I'm a defense attorney and some might assume I condone drunk driving, I clearly do not. But I also understand that not every single DUI defendant deserves to have to go through a jury trial when the legislature quite clearly created an avenue for the resolution of cases under RCW 46.61.5055. For example, a DUI case can be amended to Reckless Driving or Negligent Driving in the First Degree. In both of those instances, there are restrictions on a person's liberty and they are under the jurisdiction of the court for up to 24 months. The defendant must also pay fines and fees to the court, obtain an alcohol/drug evaluation, at a minimum attend an alcohol class or further treatment and a DUI victim's panel. A person convicted of a Reckless Driving is also subject to a 30 day license suspension and requirement for SR-22 (high-risk) insurance for three years. In both cases, the State typically asks the defendant to complete at least one day of jail which is either converted to a day of work crew or community service. So, the DUI defendant is not getting away scot-free. The reductions are also considered prior offenses, meaning that if the individual is again charged with a DUI in the next 7 years (from date of violation) and are convicted they face increased penalties (at least 30 days in jail and 60 days of electronic home detention).

The policy of the King County Prosecuting Attorney's Office doesn't really make sense because clearly every DUI case cannot be taken to trial, and believe it or not, some defendant's cases result in not guilty verdicts. The KCPA is basically taking the position that if the jury finds the defendant not guilty then it is on the jury and the office essentially washes it hands of any “responsibility” for the end result. Is that really the case, no it isn't. With a Not Guilty, the jury concludes that the KCPA had such a weak case that it should never have been brought in the first place. Remember all six jurors must agree unanimously. When six people unanimously agree that a DUI didn't occur, then quite clearly that case should have been dealt or never even filed in the first place.

The point of this article is that the Court, in collusion with the King County Prosecuting Attorney's Office, is improperly extending the time for trial of DUI Defendants due to the backlog of cases created by the KCPA's policy of not dealing any DUIs. The legislative history of the “cure period” portion of the time for trial rule did not envision this particular use. I believe the Washington State Supreme Court will be appalled at the court's activities of extending speedy trial under these conditions once it is finally addressed. The rule was meant to be implemented when some extraordinary circumstance caused a case to extend beyond speedy trial. It was not meant to be applied “just because” there are no courtrooms to hear a case on the day speedy trial expires. When speedy trial expires, if there is no good reason for that happening (more so that just court congestion due to an uncompromising prosecuting attorneys' office), the case must be dismissed under the rule. It is a shame when judges cave to the demands of the KCPA. No one condones DUIs, but in reality many criminal cases of all sorts are amended to reach a resolution, that is reality.

I'll leave you with this fact, a defendant in Kirkland, WA was charged with First Degree Murder for sneaking into a neighbor's home and stabbing her to death. The KCPA charged that individual with First Degree Murder but then amended it to Second Degree murder. The murder suspect got a deal, plain and simple, but anyone charged with DUI (a misdemeanor by the way) will get no reduction. Isn't that a bit out of touch with reality?

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Nathan "Nate" Webb has been repeatedly recognized by Washington Law and Politics Magazine as a Super Lawyer Rising Star, named one of Seattle's Top Attorneys by Seattle Met Magazine and is rated Superb (perfect 10 out of 10) by Avvo.com.

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